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Author Topic: Dismissal based on Lack of Jurisdiction  (Read 14632 times)

NYParent

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Dismissal based on Lack of Jurisdiction
« on: Aug 12, 2009, 07:21:51 PM »
Hi all!

I am hoping someone can help me here.  I am going to give a quick summary to my issue:
Mom and child live in TX while I live in NY.  Original Custody and Visitation order done in NY.  NY has continual jurisdiction over the case under UCCJA because I still live in NY.  I entered a Petition for Modification of our Parenting Agreement.  I am not seeking change of custody, we currently have Joint Legal Custody, I simply want the agreement to be more detailed and to address new issues that have emerged.  The Judge in NY agreed that the circumstances warranted a modification.

A few days later I got served with a citation from TX.  Mom made a Petition in TX to have Custody and Visitation Modified.  She's petitioning for full custody and is asking for Supervised or Restricted Visitation (basically because she doesn't want any g/f to be around the child).  Along with the modification she's seeking child support (I've been sending money directly to her).

My question is, how do I get the custody modification portion dismissed?  I don't have a problem with the Child Support (I think is best to have the state deal with it at this point), but TX does not have jurisdiction and I am not willing to have it transferred (especially because she's basically trying to overturn everything that was settled in NY).  Do I have to hire an attorney to handle this (would prefer not to) or can I file a Motion for Dismissal based on Lack of Jurisdiction myself?  According to the citation I have to file a written response with the clerk within 20 days....can I ask for dismissal there? 

I am just a little confused about TX procedures.  I have found that unlike NY, no one in the court is willing to provide any help or answer any questions.  Their answer was "hire an attorney."  I was just wondering if anyone dealt with the same issue that can provide some assistance. 

Thank you in advance for your time and any help you can provide.


snowrose

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Re: Dismissal based on Lack of Jurisdiction
« Reply #1 on: Aug 12, 2009, 10:45:34 PM »
I'm not a lawyer and I can't suggest much of anything about how things can be handled, but the one thing I would say is that if you don't want even one thing handled in TX then don't let anything be handled in TX.  They're not going to let you keep half your case in one state and half in another. 

Momfortwo

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Re: Dismissal based on Lack of Jurisdiction
« Reply #2 on: Aug 13, 2009, 05:42:11 AM »
You need to file a motion in Texas to have her case dismissed due to lack of jurisdiction.  Does your attorney know an attorney in Texas that could do this?  If  not, you will need to find one. 
 
If she wants a court order for child suppot, she needs to file in NY, where jurisdiction is.

MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #3 on: Aug 13, 2009, 07:13:39 AM »
I agree -- and if you can, hire a TX attorney -- I believe if Davy pops in he might be able to help with TX stuff.
 
At the very least, file a pro se motion to dismiss, quote the UCCJA law in it and send it via traceable mail to the TX court.
 
make sure your motion to dismiss is notorized with your signature.

NYParent

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Re: Dismissal based on Lack of Jurisdiction
« Reply #4 on: Aug 13, 2009, 10:17:39 AM »
Thank you very much for your suggestions.  I was unaware that I could settle child support issues in NY.  I will look into this.  In NY Family court does not get involved in child support, that's why I thought it had to be done in TX.

Can someone point me where I can get a Motion to Dismiss form?  Or is this something I type myself?

Yeah I am hoping that Davy can give me some suggestions, I know he's very familiar with the TX system. 


MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #5 on: Aug 13, 2009, 10:31:27 AM »
Different states, different forms, different different....doubt there is a form really.
 
Yes, you can type it up yourself.
 
Make the header just like what you received in the mail.
 
Make the subject:  Motion to Dismiss
 
Then start talking -- but not normal talk, legal terms "Comes now the Defendent with a Motion to Dismiss the Plaintiff's actions based on the fact that this court does not have jurisidiction over the pending matters.  According to the UCJJA, paragraph X, "quote it", jurisdiction is clearly in County, State, because I still live there, never have moved from there, and plan on living there in the future.
 
Respectfully request the court dismiss all pending litigation against me immediately.
 
HOW's that off the top of my head?
 
And nope, I'm not an attorney -- just someone who's been around for a while.

Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #6 on: Aug 13, 2009, 02:16:36 PM »
Sorry my time is limited right now so I'll try to backspace fast. l can tell ya what my experienced attorneys did in the effort to name TX the ORIGINAL jurisdiction vs. IL.  Your case should be easy since NY has already been established with EXCLUSIVE CONTINUING JURISDICTION per UCCJA (both states) and PKPA (accompanying Federal statues).

By the way, I hired the IL attorney over the phone from a referral over the phone from IL State Bar assoc after asking for specific experienced interstate (UCCJA and PKPA) custody counsel. Actually I got two experienced attorneys but one remained unknown to anybody until it was appropriate...Wife had filed 200 miles from her hometown which I knew was her ultimated designation.  2nd IL attorney (free) monitored first IL attorney ( $700) and TX attorneys.  That situation is probably not relevant to your case.  All attorneys did outstanding job and except TX all were cheap (the black and white statues were crystal clear).  You need to know that TX specializes attorneys as family law specialist and my custody attorney wanted $50,000 up front and said the case would probably end up between $ 75,000 and $ 125000 depending on how the other side acted (money was not an object to her).  Needless to say, I soon learned to be Pro Se' in TX after having some dip chit attorneys stand around with their hands in my pockets.

The first action my IL attorney was to file a motion for "Special and Limited appearance exclusive to Jurisdictional issues".  In effect that prevented him from addressing any custody issues.  Technically. if he addressed or responded to custody issues might be construed as enough for IL to take jurisdiction.  Wife refused to respond to TX jurisdiction where I had already been named temporary managing conservator. She was illegally (clearly lacking jurisdiction) named temporary custodial parent in IL.

Soooooooooo....

- she may have one of those dip chit attorneys that has no fricking idea what they are doing and just assumes TX jurisdiction ignoring the NY proceedings like you lived acrossed a TX gravel road.  Then again, may be the atty knows exactly what their doing and hope you screw something up.

-  if you choose to find a TX attorney..you can probably educate with the pertinant NY, TX and PKPA statues (articles section on this site) but MAKE SURE they know this is SIMPLY ABOUT a JURISDICTIONAL MATTER and not an expensive CUSTODY isssue.  May be you can get off for
$ 0.02 cents.

- the UCCJA / PKPA allows for your NY judge to contact by phone the TX court/judge to let them know he has the EXCLUSIVE CONTINUING JURISDICTION over ALL MATTERS AND ALL PARTYS (child and both parents).  MAKE SURE your NY jurist will not relinquish jurisdiction.  TX should then dismiss on their own.
 
- you might consider a PKPA filing in NY Federal Court even Pro Se (Federal ct clerks should help).  The PKPA is much shorter and clearer than the UCCJA (more commas and semi-commas) and the MAJOR INTENT  (stated in preamble; see actual statue in law books) of the PKPA was to prevent judicial competition and re-litigation of custody matters. and the cost thereof and to prevent forum shopping (to obtain favorable rulings).

I might be able to help with a TX attorney especially if the filing is around Dallas or in north TX.

Try desperately (don't respond to TX jurisdisction; ie 20 days respond time) TX has absolutely zero jurisdiction over a NY resident ... only TX residents and for this matter by all laws everywhere TX has no jurisdiction over your child or the mother.

You might become popular with TX authorities if you tell them to go piss up a rope ... I seem to do that a lot and they seem to think I'm funny and they like me.  They understand that.

   

ocean

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Re: Dismissal based on Lack of Jurisdiction
« Reply #7 on: Aug 13, 2009, 05:25:37 PM »
I am in NY and Family court DOES deal with child support BUT you have to ask for it. You cant go into a visitation hearing and ask for child support. NY is fairly easy to deal with by yourself as far as child support goes. It is a percentage state and will go by NCP income only. You can file yourself at the family court of your last visitation orders are. Fill it out and they will type it for you and then in a few weeks you will have a court date. She will be notified and will have to appear in NY.

You can do the same thing for visitation changes, file in family court for modification. If you want to do BOTH, they will do it together BUT you need to file two separate forms.

MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #8 on: Aug 13, 2009, 07:09:46 PM »
thanks for popping in Davy!

Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #9 on: Aug 14, 2009, 05:56:04 PM »
One other thing.  There is a technical legal requirement for custody orders to be registered .. I think the registration is within NY state.  Your attorney should have done this so you might check.  That is all I know about the matter except it applies to all states and is a common practice.  Others may provide the advice.

 

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